Perez-Perez v. Wilkinson, No. 20-1048 (7th Cir. 2021)Annotate this Case
In 1990, 18-year-old Perez entered the U.S. from Mexico without inspection. She was apprehended and was personally served with an Order to Show Cause, ordering her to appear for a deportation hearing at a time and place “to be set.” She was released on her own recognizance. A hearing was set for July 1992. The immigration court sent notice of the hearing to the New York address Perez provided upon being released. A second notice was sent by certified mail and a receipt bearing the signature of “Rebeca Perez” arrived at the immigration court. Perez insists that she never received either notice.
The IJ found her deportable in her absence and sent Perez the decision. No appeal followed. In 2018, Perez moved to reopen those proceedings. The intervening 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), increased the requirements for the document used to initiate “removal,” mandating a Notice to Appear specifying the time and place of a hearing, 8 U.S.C. 1229(a)(1). IIRIRA also created new discretionary relief, “cancellation of removal,” available to certain non-citizens in active removal proceedings who demonstrate 10 years of continuous physical presence in the U.S. Under the “stop-time rule,” the period of continuous physical presence ends when a non-citizen receives a Notice to Appear. In 2018, the Supreme Court held (Pereira) that a Notice to Appear omitting the time and place of a removal hearing does not trigger the stop-time rule.
The immigration judge, the BIA, and the Seventh Circuit denied relief. Pereira did not apply because Perez received an Order to Show Cause; Pereira concerned Notices to Appear. Perez was not in removal proceedings but had faced deportation proceedings.